Radical justice

Robalini's Note: On the other hand...

http://news.google.com/news?btcid=9cde01934c14c188

Comment by Vincent Warren, Exec. Director, Center for Constitutional Rights
Radical justice
1-22-9

For those of us who were there at the beginning, when we filed the first habeas corpus cases almost seven years ago to the day that President Obama ordered Guantanamo closed, today's executive orders are far from radical, although greatly appreciated and much overdue. A long-awaited sigh of relief was heard all around. At last, we have a president in Barack Obama who has committed the nation to uphold the rule of law, restore the constitution and comply with international law.

A radical concept? Not at all. Yet, after the last eight years of rampant and defiant government lawlessness, Barack Obama's executive orders to close Guantanamo and the secret CIA black sites and comply with the Geneva Conventions appear to many as a radical shift.

Still, we are concerned by the lack of specificity in the President's order and its vague timeline. Sadly, the very two issues that prompted the Center for Constitutional Rights (CCR) to intervene in 2002 remain of concern even in the wake of these remarkable orders. The first issue is what to do about detention, and the second is what we mean by dangerous and who we trust to define it.

If the men at Guantanamo cannot be immediately charged, they must be released or (for those who would face torture or persecution) found safe havens - our Constitution demands it. Those were among the very first words that lawyers uttered on this issue seven years ago. Two presidents, three attorneys general and two secretaries of defense later, we are still saying the same thing. It is clear that President Obama will comply with the rule of law. The men in Guantanamo who have been sitting in jail for years, however, have heard this before. We continue to remind the decision-makers that each additional day being held illegally deepens the injustice for these men. And, for our nation, each additional day these men are held illegally under the Obama administration means the weakening of his promise to uphold our values and the mandates of our law.

CCR issued a report just last week outlining three simple steps to close Guantanamo and put an end to the dark legacy of torture that exists there. We continue to emphasize that there are at least 60 men who are detained at Guantanamo Bay who are at risk of torture or persecution were they to be returned to their countries of origin, and no plan has been detailed for finding them safe haven.

It took George Bush days to send the men into a black hole. Justice demands that this new government work to get them out with in the first 100 days.

On the second issue, who is dangerous and who do we trust to tell us so? Seven years ago, George Bush declared that the first 20 men sent to Guantánamo were the "worst of the worst." The country was scared. CCR and others challenged the government to give us more than just the simple assurance: "trust us." We went to the courts to get the government to put up or shut up by means of the age-old writ of habeas corpus -- the right to go before an impartial court and know the charges against one. First, the government delayed, and when it lost in the courts, it delayed some more, all the time releasing 500 men out of the back door of Guantanamo. Why? Because when we pressed the government through the courts, they could no longer deny the truth - that the vast majority of the men in Guantanamo shouldn't have been there in the first place.

Seven years later, the Bush administration has passed the mantle. Yet all around us, the echoes of the outgoing administration tell us, trust us, these last 245 guys are really the worst of the worst. There are 50, no 80, no 100 who we somehow know are guilty but we don't have the evidence to prosecute or we somehow know may be dangerous in the future so we have to find a way to keep them detained.

What we expect Barack Obama to understand is that our values and the rule of law compel us to challenge him to tell us more than "trust us." In addition, he has the added burden of taking office after some of these men have been in illegal detention for close to a decade. To delay justice is to deny it. We said it then, and we say it now. This time, we are asking the Obama administration to make quick determinations - within 100 days - as to who they intend to try in federal courts and who they intend to release. Then to get to the business of doing both with the speed and efficiency that, up until this moment, defined only illegal government activities. A radical concept? Not at all.

John Yoo, totalitarian

http://onlinejournal.com/artman/publish/article_3399.shtml

John Yoo, totalitarian
By Paul Craig Roberts
Online Journal Contributing Writer
Jun 20, 2008

John Yoo stands outside the Anglo-American legal tradition. His views lead to self-incrimination wrung out of a victim by torture. He believes a president of the US can initiate war, even on false pretenses, and then use the war he starts as cover for depriving US citizens of habeas corpus protection.

A US attorney general informed by Yoo’s memos even went so far as to tell the Senate Judiciary Committee that the Constitution does not provide habeas corpus protection to US citizens.

Yoo’s animosity to US civil liberties made him a logical choice for appointment to the Bush Regime’s Department of Justice [sic], but his appointment as a law professor at the University of California, Berkeley, shatters that university’s liberal image.

Habeas corpus is a centuries-old British legal reform that stopped authorities from arbitrarily throwing a person into a dungeon and leaving him there forever without presenting charges in a court of law. Without this protection, there can be no liberty.

Yoo is especially adamant that "enemy combatants" have no rights to challenge the legality of their detentions by US authorities before a federal judge. Yoo would have us believe that the detainees at Guantanamo, for example, are all terrorists who were attacking Americans.

Nothing could be further from the truth.

The question is whether any of the detainees are "enemy combatants." Yoo would have it so because the president says it is so. As the president has already decided, what is the sense in presenting evidence to a judge? For Yoo, accusation by the executive branch is the determination of guilt.

But what we know about the detainees is that many are hapless individuals who were captured by warlords and sold to the Americans for the bounty that the US government offered for "terrorists."

Some of the other detainees could be Taliban who were engaged in an Afghan civil war that had nothing whatsoever to do with the US. The Taliban were not fighting the US until the US invaded Afghanistan and began attacking the Taliban. This would make Taliban detainees prisoners of war captured by invading US troops. How POWs can be tortured, denied Geneva Convention protections, and tried by military tribunals without the US government being in violation of US and international law is inexplicable.

Suppose you were a traveling businessman grabbed by a tribe and sold to the Americans. Would you consider it just to be detained in Gitmo, undergoing whatever abuse is dished out, for five or six years of your life, or forever, without family knowing what has become of you?

Perhaps the greatest injustice was done to John Walker Lindh, an American citizen who, like Americans of a previous generation who fought in the Spanish Civil War, was fighting for the Taliban in the Afghan civil war against the Northern Alliance. Suddenly the Americans entered the Afghan civil war on the side of the Northern Alliance. Lindh was captured and sentenced to 20 years in prison.

This kind of punishment is a new form of tyranny. It is not law, and it is not justice.

Lindh had no opportunity to withdraw once the US entered on the opposite side. The only point of treating Lindh as if he were some dangerous traitor was to demonstrate that American citizens can be treated to a Kafkaesque experience and have the American public accept it.

Yoo stands for the maximum amount of injustice, illegality and unconstitutionality that can be committed in the name of the national security state.

No American security was at stake in Afghanistan or in Iraq, and none is at stake in Iran today. The Bush Regime may be creating security problems for Americans in the future by fomenting hatred of Americans among Muslims.

This security problem is insignificant compared to the threat to our liberty and freedom posed by John Yoo and his Republican Federalist Society colleagues who are committed to tyranny in the name of "energy in the executive."

Writing on the Wall Street Journal editorial page on June 17, [The Supreme Court Goes to War], Yoo denounced the five Supreme Court justices who defended the US Constitution against arbitrary "energy in the executive."

Yoo believes that the Constitution and liberty rank below "the nation’s security." Fortunately, Yoo wrote, a fix is at hand. "The advancing age of several justices" means that President McCain can give us more judges like Roberts (no relation) and Alito who will make certain that mere civil liberties don’t get in the way of arbitrary executive power justified by national security.

In a Yoo-McCain regime, the terrorists you will have to fear are those in your own government, against whom you will have no protection whatsoever.

Paul Craig Roberts was Assistant Secretary of the Treasury during President Reagan’s first term. He was Associate Editor of the Wall Street Journal. He has held numerous academic appointments, including the William E. Simon Chair, Center for Strategic and International Studies, Georgetown University, and Senior Research Fellow, Hoover Institution, Stanford University. He was awarded the Legion of Honor by French President Francois Mitterrand. He is the author of Supply-Side Revolution : An Insider's Account of Policymaking in Washington; Alienation and the Soviet Economy and Meltdown: Inside the Soviet Economy, and is the co-author with Lawrence M. Stratton of The Tyranny of Good Intentions : How Prosecutors and Bureaucrats Are Trampling the Constitution in the Name of Justice.

Supreme Court restores habeas corpus

http://www.salon.com/opinion/greenwald/2008/06/12/boumediene/index.html

Glenn Greenwald
Thursday June 12, 2008
Supreme Court restores habeas corpus, strikes down key part of Military Commissions Act

In a major rebuke to the Bush administration's theories of presidential power -- and in an equally stinging rebuke to the bipartisan political class which has supported the Bush detention policies -- the U.S. Supreme Court today, in a 5-4 decision, declared Section 7 of the Military Commissions Act of 2006 unconstitutional. The Court struck down that section of the MCA because it purported to abolish the writ of habeas corpus -- the means by which a detainee challenges his detention in a court -- despite the fact that the Constitution permits suspension of that writ only "in Cases of Rebellion or Invasion."

As a result, Guantanamo detainees accused of being "enemy combatants" have the right to challenge the validity of their detention in a full-fledged U.S. federal court proceeding. The ruling today is the first time in U.S. history that the Court has ruled that detainees held by the U.S. Government in a place where the U.S. does not exercise formal sovereignty (Cuba technically is sovereign over Guantanamo) are nonetheless entitled to the Constitutional guarantee of habeas corpus whenever they are held in a place where the U.S. exercises effective control.

In upholding the right of habeas corpus for Guantanamo detainees, the Court found that the "Combatant Status Review Tribunals" process ("CSRT") offered to Guantanamo detainees -- mandated by the John-McCain-sponsored Detainee Treatment Act of 2005 -- does not constitute a constitutionally adequate substitute for habeas corpus. To the contrary, the Court found that such procedures -- which have long been criticized as sham hearings due to the fact that defendants cannot have a lawyer present, government evidence is presumptively valid, and defendants are prevented from challenging (and sometimes even knowing about) much of the evidence against them -- "fall well short of the procedures and adversarial mechanisms that would eliminate the need for habeas corpus review." Those grave deficiencies in the CSRT process mean that "there is considerable risk of error" in the tribunals' conclusions.

The Court's ruling was grounded in its recognition that the guarantee of habeas corpus was so central to the Founding that it was one of the few individual rights included in the Constitution even before the Bill of Rights was enacted. As the Court put it: "the Framers viewed freedom from unlawful restraint as a fundamental precept of liberty, and they understood the writ of habeas corpus as a vital instrument to secure that freedom." The Court noted that freedom from arbitrary or baseless imprisonment was one of the core rights established by the 13th Century Magna Carta, and it is the writ of habeas corpus which is the means for enforcing that right. Once habeas corpus is abolished -- as the Military Commissions Act sought to do -- then we return to the pre-Magna Carta days where the Government is free to imprison people with no recourse.

In its decision, the Court emphasized (and revived) some of the most vital principles of our system of Government which have been trampled upon and degraded over the last seven years (emphasis added):

The Framers' inherent distrust of government power was the driving force behind the constitutional plan that allocated powers among three independent branches. This design serves not only to make Government accountable but also to secure individual liberty. . . .

Where a person is detained by executive order rather than, say, after being tried and convicted in a court, the need for collateral review is most pressing. . . . The habeas court must have sufficient authority to conduct a meaningful review of both the cause of detention and the Executive's power to detain. . . .

Security depends upon a sophisticated intelligence apparatus and the ability of our Armed Forces to act and interdict. There are further considerations, however. Security subsists, too, in fidelity to freedom's first principles. Chief among these are freedom from arbitrary and unlawful restraint and the personal liberty that is secured by adherence to separation of powers. . . .

The laws and Constitution are designed to survive, and remain in force, in extraordinary times. Liberty and security can be reconciled; and in our system, they are reconciled within the framework of law. The Framers decided that habeas corpus, a right of first importance, must be a part of that framework, part of that law.

In ruling that the CSRTs woefully fail to provide the constitutionally guaranteed safeguards, the Court quoted Alexander Hamilton's Federalist No. 84: "The practice of arbitrary imprisonments, in all ages, is the favorite and most formidable instruments of tyranny." It is that deeply tyrannical practice -- implemented by the Bush administration and authorized by a bipartisan act of Congress -- which the U.S. Supreme Court, today, struck down.

The Military Commissions Act of 2006 was -- and remains -- one of the great stains on our national political character. It was passed by a substantial majority in the Senate (65-34) with the support of every single Senate Republican (except Chafee) and 12 Senate Democrats. No filibuster was even attempted. It passed by a similar margin in the House, where 34 Democrats joined 219 Republicans to enact it. One of the most extraordinary quotes of the post-9/11 era came from GOP Sen. Arlen Specter, who said at the time that that the Military Commissions Act -- because it explicitly barred federal courts from hearing habeas corpus petitions brought by Guantanamo detainees -- "sets back basic rights by some 900 years" and was "patently unconstitutional on its face" -- and Specter then proceeded to vote for it.

The greatest victim of the 9/11 attack has been our core, defining constitutional liberties. Of all the powers seized by this administration in the name of keeping us Safe, the power to imprison people indefinitely with no charges and no real process is the most pernicious.

Passage of the Military Commissions Act was spearheaded by John McCain, who was anointed by cowardly Senate Democrats to speak for them and negotiate with the White House. Once McCain blessed the Military Commissions Act, its passage was assured. Barack Obama voted against it, and once its passage appeared certain, Obama offered an amendment to limit it to five years. That amendment failed, rendering the MCA the law of the land without any time limits.

The Supreme Court today did what the Founders envisioned it should do: it protected our basic constitutional guarantees from erosion and assault by a corrupt majority within the political class. In so doing, the Court took a mild though important step in reversing some of the worst and most tyrannical excesses of the last seven years. Patrick Henry warned long ago of the unique dangers of allowing executive imprisonment without meaningful process:

Is the relinquishment of the trial by jury and the liberty of the press necessary for your liberty? Will the abandonment of your most sacred rights tend to the security of your liberty? Liberty, the greatest of all earthly blessings -- give us that precious jewel, and you may take everything else! . . . Guard with jealous attention the public liberty. Suspect everyone who approaches that jewel.

In his concurring opinion in Brown v. Allen (1953), Justice Jackson wrote:

Executive imprisonment has been considered oppressive and lawless since John, at Runnymede, pledged that no free man should be imprisoned, dispossessed, outlawed, or exiled save by the judgment of his peers or by the law of the land. The judges of England developed the writ of habeas corpus largely to preserve these immunities from executive restraint.

Our political and media elite were more than willing -- they were eager -- to relinquish that right to the President in the name of keeping us Safe from Terrorists. Today, the U.S. Supreme Court, in what will be one of the most celebrated landmark rulings of this generation, re-instated that basic right, and in so doing, restored one of the most critical safeguards against the very tyranny this country was founded to prevent.

UPDATE: Three of the five Justices in the majority -- John Paul Stevens (age 88), Ruth Bader Ginsburg (age 75) and David Souter (age 68) -- are widely expected by court observers to retire or otherwise leave the Court in the first term of the next President. By contrast, the four judges who dissented -- Antonin Scalia, Clarence Thomas, John Roberts and Sam Alito -- are expected to stay right where they are for many years to come.

John McCain has identified Roberts and Alito as ideal justices of the type he would nominate, while Barack Obama has identified Stephen Breyer, David Souter and Ginsberg (all in the majority today). It's not hyperbole to say that, from Supreme Court appointments alone, our core constitutional protections could easily depend upon the outcome of the 2008 election.

Hoover Planned Mass Jailing in 1950

http://www.nytimes.com/2007/12/23/washington/23habeas.html

December 23, 2007
Hoover Planned Mass Jailing in 1950
By TIM WEINER

A newly declassified document shows that J. Edgar Hoover, the longtime director of the Federal Bureau of Investigation, had a plan to suspend habeas corpus and imprison some 12,000 Americans he suspected of disloyalty.

Hoover sent his plan to the White House on July 7, 1950, 12 days after the Korean War began. It envisioned putting suspect Americans in military prisons.

Hoover wanted President Harry S. Truman to proclaim the mass arrests necessary to “protect the country against treason, espionage and sabotage.” The F.B.I would “apprehend all individuals potentially dangerous” to national security, Hoover’s proposal said. The arrests would be carried out under “a master warrant attached to a list of names” provided by the bureau.

The names were part of an index that Hoover had been compiling for years. “The index now contains approximately twelve thousand individuals, of which approximately ninety-seven per cent are citizens of the United States,” he wrote.

“In order to make effective these apprehensions, the proclamation suspends the Writ of Habeas Corpus,” it said.

Habeas corpus, the right to seek relief from illegal detention, has been a fundamental principle of law for seven centuries. The Bush administration’s decision to hold suspects for years at Guantánamo Bay, Cuba, has made habeas corpus a contentious issue for Congress and the Supreme Court today.

The Constitution says habeas corpus shall not be suspended “unless when in cases of rebellion or invasion, the public safety may require it.” The plan proposed by Hoover, the head of the F.B.I. from 1924 to 1972, stretched that clause to include “threatened invasion” or “attack upon United States troops in legally occupied territory.”

After the terrorist attacks of Sept. 11, 2001, President Bush issued an order that effectively allowed the United States to hold suspects indefinitely without a hearing, a lawyer, or formal charges. In September 2006, Congress passed a law suspending habeas corpus for anyone deemed an “unlawful enemy combatant.”

But the Supreme Court has reaffirmed the right of American citizens to seek a writ of habeas corpus. This month the court heard arguments on whether about 300 foreigners held at Guantánamo Bay had the same rights. It is expected to rule by next summer.

Hoover’s plan was declassified Friday as part of a collection of cold-war documents concerning intelligence issues from 1950 to 1955. The collection makes up a new volume of “The Foreign Relations of the United States,” a series that by law has been published continuously by the State Department since the Civil War.

Hoover’s plan called for “the permanent detention” of the roughly 12,000 suspects at military bases as well as in federal prisons. The F.B.I., he said, had found that the arrests it proposed in New York and California would cause the prisons there to overflow.

So the bureau had arranged for “detention in military facilities of the individuals apprehended” in those states, he wrote.

The prisoners eventually would have had a right to a hearing under the Hoover plan. The hearing board would have been a panel made up of one judge and two citizens. But the hearings “will not be bound by the rules of evidence,” his letter noted.

The only modern precedent for Hoover’s plan was the Palmer Raids of 1920, named after the attorney general at the time. The raids, executed in large part by Hoover’s intelligence division, swept up thousands of people suspected of being communists and radicals.

Previously declassified documents show that the F.B.I.’s “security index” of suspect Americans predated the cold war. In March 1946, Hoover sought the authority to detain Americans “who might be dangerous” if the United States went to war. In August 1948, Attorney General Tom Clark gave the F.B.I. the power to make a master list of such people.

Hoover’s July 1950 letter was addressed to Sidney W. Souers, who had served as the first director of central intelligence and was then a special national-security assistant to Truman. The plan also was sent to the executive secretary of the National Security Council, whose members were the president, the secretary of defense, the secretary of state and the military chiefs.

In September 1950, Congress passed and the president signed a law authorizing the detention of “dangerous radicals” if the president declared a national emergency. Truman did declare such an emergency in December 1950, after China entered the Korean War. But no known evidence suggests he or any other president approved any part of Hoover’s proposal.